By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen
The first quarter cases largely hone or refine established CEQA concepts. Not surprisingly, two decisions reaffirm that the fair argument test (whether for exemptions or negative declarations) remains a relatively low threshold for an opponent to cross (Berkeley Hillside and Consolidated Irrigation.) The Flanders court clarified that feasibility is based upon a “reasonably prudent” test, not what the applicant can afford. The Fifth Appellate District applied the traditional appellate substantial evidence test to a trial court order augmenting a CEQA record (Consolidated Irrigation District.) Finally, the most interesting case comes from El Dorado which discusses the CEQA transition from a general plan EIR to an implementing action (Center for Sierra Nevada Conservation). Enjoy!
A larger than average house, to be constructed on a Berkeley hillside, met the test for “unusual circumstances”, limiting the use of a CEQA categorical exemption. Based upon disputed testimony of a soils engineer, the Court found that there was substantial evidence of a fair argument, necessitating the preparation of an EIR. Berkeley Hillside Preservation v. City of Berkeley (March 7, 2012, A131254) ___Cal.App.4th ___. See Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence.
NEGATIVE DECLARATIONS: FAIR ARGUMENT TEST
To the extent that a lead agency questions the credibility of a witness in a CEQA proceeding, the agency should identify the “evidence with sufficient particularity to allow the reviewing court to determine whether there were legitimate department issues of credibility.” In the absence of this showing, the lead agency may be precluded from arguing the validity of preferred evidence. Consolidated Irrigation District v. City of Selma (February 8, 2012, F061103) ___ Cal.App.4th ___.
MITIGATION MEASURES: IMPACT FEES
A county’s mitigation fee program required the preparation of an EIR prior to its adoption because the evidence in the record did not support a conclusion that payment of the fee presumptively established full mitigation. Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156.
EIRs: RESPONSES TO COMMENTS
A lead agency has a duty to respond to comments which raise significant environmental issues. The failure to do so can result in setting aside the certification of the EIR. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.
EIRs: ECONOMIC INFEASIBILITY
An EIR is not required to contain an economic infeasibility analysis, even when used as the basis to reject an alternative or mitigation measures. The standard for economic feasibility for a public agency is based upon a “reasonably prudent property owner” standard, not necessarily what the lead agency can afford to pay. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.
EIRs: SECOND TIER DOCUMENTS
A county’s approval of a negative declaration for an oak woodlands program and related impact fee was overturned where the program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program because it did not assess how the payment of a mitigation fee would lessen the impacts of development on the county’s oak woodlands. A tiered EIR was required. Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156.
EIRs: STATEMENT OF OVERRIDING CONSIDERATIONS
It is acceptable practice for lead agencies to structure statements of overriding considerations in the alternative (as compared to drafting them in the cumulative.) This forces the opponents to argue the insufficiency of each ground, and the evidence in the record to support each finding. Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603. See EIR Fails for Insufficient Response to One Comment Letter.
While CEQA provides for an administrative appeal of the certification/approval of CEQA documents, (Public Resources Code section 21151; CEQA Guidelines sections 15090(b), 15356), a local board of supervisors does not have appellate review rights of a landfill permit granted by a local enforcement agency. No Wetlands Landfill Expansion v. County of Marin (March 20, 2012, A131651) ___Cal.App.4th ___.
CEQA LITIGATION: AUGMENTING THE LITIGATION RECORD
An appellate court reviews a trial court order to augment the record under that traditional appellate substantial evidence test. Consolidated Irrigation District v. City of Selma(February 8, 2012, F061103) ___ Cal.App.4th ___.
CEQA LITIGATION: PUBLIC AGENCIES AS PLAINTIFFS
A water district has sufficient statutory interest to bring a CEQA lawsuit challenging assessment of impacts to groundwater basins. Consolidated Irrigation District v. City of Selma(February 8, 2012, F061103) ___ Cal.App.4th ___.
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, Elizabeth Strahlstrom , Katherine Hart or Glen Hansen. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.